Monthly Archives: May 2017

A weekly scan of new legislation and regulations important to the Ontario health sector, as well as articles of interest.

by Pam Seto

Bills

No new bills of interest

Regulations

O. REG 130/17 – Professional Misconduct and Conflict of Interest

This regulation was made under the Pharmacy Act, 1991, revoking O.REG 681/93 – Professional Misconduct. O.REG 130/17 specifies what would be considered acts of professional misconduct. This now includes practicing while impaired or adversely affected by a substance, condition, dysfunction, disorder or circumstance that the members knows or ought to knows impairs or adversely affects ability to practice; performing a controlled act that is otherwise authorized to the member where the performance of that act is for an improper purpose; and failing to keep PHI or PI confidentiality or accessing PHI without professional reason to do so.

Increasingly, big data is being used by government institutions to conduct big data projects. The findings can be of tremendous value. Data can be used to resolve complex societal issues, gain knowledge and unique insights about various population groups, and inform policies and programs.

While it is apparent that big data is invaluable to society, it is important that government institutions are cognizant of the common issues that come along with using big data. Many of the existing privacy principles that are enshrined in Ontario privacy legislation compete with the use of big data. For example, data is traditionally used only for a very specific purpose. This is to prevent unauthorized use of the data that would be outside the scope of the authorized project. In contrast, the use of big data may not have a defined purpose. Often big data is used to find correlations, patterns, and insights without a purpose identified beforehand.

In light of big data being widely used by institutions, the Ontario Information and Privacy Commissioner (“IPC”) released the “Big Data Guidelines” (“Guidelines”) on May 17, 2017. The Guidelines provide an overview of some of the key issues and best practices that a government institution should consider when conducting a big data project using personal information.

What exactly is big data?

The IPC defines big data as “data collections that cannot be easily managed or understood using traditional means because of the size, irregularity, or complexity of the data. It is often defined by the three ‘V’s: volume, velocity and variety.”

Stages of a Big Data Project & Common Issues

A big data project is usually divided into four stages. The Guidelines highlight some of the key issues an institution should be aware of and recommend best practices that should be implemented at each stage of the data project:

Integration – This stage includes combining and linking personal information together to form a single integrated data set.

Linking errors from probabilistic linkages

Inadequate separation of policy research and administrative functions

Creation of new databases

Analysis – This stage involves analyzing the data sets to derive new insights and findings.

Poor data quality

Biased data sets

Discriminatory proxies

Spurious correlations

Profiling – This stage is only applicable for projects that build a predictive model or profile of individuals as a result of the analysis, and using the model to evaluate or predict attributes of individuals on a case-by-case basis.

Lack of transparency

False predictions

Individuals as objects

Best Practices

The IPC provides best practices and recommendations to combat some of the issues above. Many of these recommendations are helpful in establishing best practices for the use of big data, but further guidance by the IPC is needed to elaborate on how these practices can be implemented by institutions on a day-to-day basis.

For example, due to the significant consequences profiling can have on individuals, the IPC recommends that individuals should be given the opportunity and sufficient support to challenge or respond to government institution decisions that may be made based on profiling. This is best practice, but what would this process look like? Who would enforce and oversee such challenges? In particular, due to the nature of the data sets in big data, who would the impacted individuals be? What mechanisms would be put in place to ensure that affected individuals would be notified and heard? Would this process hinder the use of big data?

The IPC acknowledges that the Guidelines are very general, and other guidelines will be provided to address specific sectors. The Guidelines currently do not address issues or provide recommendations or best practices for institutions in the health care sector – and the use of personal health information in the context of big data. This is guidance that the health care sector eagerly awaits to hear from the IPC, as the use of big data is becoming more important and widespread.

A weekly scan of new legislation and regulations important to the Ontario health sector, as well as articles of interest.

by Pam Seto

Bill 84 – Medical Assistance in Dying Statute Law Amendment Act, 2017

This Bill received Royal Assent on May 10, 2017.

The Bill amends various acts with respect to medical assistance in dying (MAID).

The following acts are amended:

Coroners Act – A physician or nurse practitioner who provided MAID must notify the coroner and provide the necessary information to determine if the death should be investigated.

Excellent Care for All Act, 2005 – Physicians and nurse practitioners, and the people assisting is protected from litigation. The fact that people who receive MAID cannot be used as a reason to deny a right or refuse a benefit that would otherwise be provided under contract or statute.

Freedom of Information and Protection of Privacy Act and the Municipal Freedom of Information and Protection of Privacy Act– Both acts do not apply to identifying information relating to MAID.

Vital Statistics Act – Coroner documentation requirements do not apply for MAID if there is no investigation.

Workplace Safety and Insurance Act, 1997 – A worker who receives MAID is deemed to have died as a result of the injury or disease for which the worker was determined eligible to receive MAID.

This regulation amends O.REG 445/10 under the Excellent Care for All Act, 2010 by revoking certain provisions as it relates to the Ontario Health Quality Council (i.e. the Council acting as a Crown Agent is revoked).

This regulation amends O. REG 201/96 under the Ontario Drug Benefit Act to specify that recipients of professional services that are provided or arranged by a LHIN are eligible persons under the Ontario Drug Benefit program. Once the transfer of CCACS to LHINs is complete, reference to professional services provided by CCAS will be revoked.

The proposed amendment to O.REG 329/04 under PHIPA would designate the LHINs as HICs under PHIPA.

Under the Patients First Act, 2016, LHINs are responsible for home and community care, which is currently the function of the CCACs. All the CCAC functions, employees and assets will be eventually transferred to the LHINs. As a result of this change, the LHINs must comply with the privacy obligations set out in PHIPA. In particular, the LHINs would be a HIC for providing or assisting in providing health to an individual, and for records transferred to it from CCAC.

Nurse practitioners (NPs) fill an important gap in our health care system. In 2007, the first Ontario NP-led clinic opened its doors in Sudbury, and dozens more are now in operation in Ontario.

On April 19, 2017, the role of NPs was expanded. Provided the NP successfully completes the required education, NPs have the authority to prescribe medical cannabis and substances that may be used for medical assistance in dying (MAID). The education must be approved by the governing council of the College of Nurses of Ontario and must be specifically designed to educate NPs to safely, effectively and ethically prescribe controlled substances.

Before prescribing can occur:

there must be a nurse-patient relationship between the NP and the patient;

the intended use of the substance can only be therapeutic; and

certain information must be contained in the prescription, a copy of which must be retained as part of the patient’s health records.

Bill 84, the Medical Assistance in Dying Amendment Act, includes limited immunity for NPs who assist with MAID. NP-led clinics are also given limited immunity in relation to the delivery of MAID. Bill 84 received Royal Assent and became law on May 10th.